On The Judicial Control Of Administrative Discretion

Now the requirements of people for executive power is increasing,because of the economic globalization,the rule of law and the process of political democratization,as well as the diversification of functions. So in order to correct the inherent defects in the law itself,for example its lag and rigidity,we should make the execute authorities have a certain discretionary power given the specefic circumstances.Then they can fully use their own management experience,professional knowledge and technical expertise to solve the conflicts flexibly.But at the same time,we should keep cool-headed.Administrative discretionary power as a state power has a two-sided function.The possibility of abusing discretionary power is increasing when its opportunities of exercising is increasing.The abuse will do great harm to the community,so every power must be constrained and the discretionary power is no exception.There are many ways to control the discretionary power.Within the legal system the ways can be divided into system control and outside system control.The former means that the higher administrative organs correct incorrect discretion timely to relize monitoring the exercise of discretiom within the administrative system.The latter ways can be divided into judical control and legislative control.This article will focus on the judical control and can be divided into four major parts:The first part is to define the scope of the study,namely,the theoretical definition.It refers to the understanding in the civil law countries,common law countries and in China,the types of discretionary power,in addition,it defines the need of its existence and the need of control.Based on this,I have analysed the ways of controling.The second part is to set up a detailed analysis of the cornerstones of the argument,in other words,to demonstrate the judicial control has legitimacy.This power has definited the theoretical foundation, empirical analysis and setted out the limites of judicial control. The third part is to link theory with practice.That is to elaborate the situation of China's current judicial control and the reasons of the problems .The fourth part is to analyses and solve problems.I made four preliminary recommendations to improve China's judicial control.The first,about the principle I think we should introduce the principle of the portionality and then I analysed the feasibility and the level;The second is to well define the judicial standard and make et be more operational;The third is to improve the system by gradually establishing case law system;The fourth is to increase the independence of the judiciary.The judicial power as the last line of protecting citizens from the aggression of discretion,is one of the important ways to control the discretionary power.Regarding China's late start of the study,there are still many defects in theory and practice.So we should put more attention to improving the judicial control system.Then we can really promote the rule of law and protect human rights well.